Wednesday Writs for 7/3

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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27 Responses

  1. Jaybird says:

    I love fair use and I hate copyright law.

    I am a fan of parody being protected under fair use. I think that parody is an exceptionally important tool when it comes to criticism and, yes, humor.

    But I don’t want judges to be able to say that “Ice Ice Baby” isn’t a parody of “Under Pressure”.

    How are covers done, anyway? If I want to do a cover of Toto’s Africa, I should be able to do it. I just have to make sure that David Paich gets a piece of the action as defined by current music law, right? He can withhold his blessing but not his permission because permission is not his to give.

    I mean, it’d be weird if I wouldn’t be able to sing Africa but I could sing a song about body parts and/or functions to the tune of Africa…

    To use your favorite Weird Al song as an example, here’s who he has listed as the writers of Word Crimes (according to wikipedia): Robin Thicke, Pharrell Williams, Clifford Harris Jr., Marvin Gaye, Yankovic.

    So, even in parody, Clifford Harris Jr. gets a piece of the action.Report

    • Doctor Jay in reply to Jaybird says:

      The interesting thing about Toto’s “Africa” is that the rules for live performance are different from the rules for recording.

      For live performance, David Paich (probably) can’t say no. The rights for live performance are either held by ASCAP or BMI. And you pay a small fee to them, and they distribute the fees they collect to rights-holders according to a formula that they work out. (It’s related to popularity charts). Hmm, I see there’s a third organization these days: SESAC.

      ASCAP says it handles “performance royalties” both live and broadcast. I don’t exactly know how that affects recordings, but I don’t think it does. I think that’s a separate channel.

      The reason a song to the tune of Africa might be acceptable is that a parody is unlikely to diminish demand for the original, while a straight-up cover might well. That’s why they are different. And what I read in Souter’s opinion is that reference to the original is what makes it “criticism”, so some lyrics that did not particularly reference the original lyrics might well not pass muster, as they might well “muddy the waters” and detract from sales of the original.Report

      • Jaybird in reply to Doctor Jay says:

        Telling a woman that she looks like Cousin It is a reference to the original, I suppose…

        Using that broad of a definition of criticism/parody, I am certain that my humorous song based on Avril Lavigne’s “Complicated” will meet muster.Report

  2. Oscar Gordon says:

    Speaking of judges and rape. The Army should know better.Report

    • George Turner in reply to Oscar Gordon says:

      I think the appellate judges got it right.Report

      • Road Scholar in reply to George Turner says:

        You would.Report

        • George Turner in reply to Road Scholar says:

          Anyone who can slide into a female soldier’s sleeping bag, itself laying on top of crinkly Mylar, while closely surrounded by other cadets on a quiet night, and not wake her or anyone else up, is a freakin’ super ninja who could slip into Tehran and take out their entire leadership with a #2 pencil.

          That kind of nagging question is just one of the basic reasons why the appellate court found that the facts didn’t support the standard of “beyond a reasonable doubt”. They raised many other questions, too.

          Their ruling is linked in the story Oscar Gordon cited, if you want to read it.Report

          • Em Carpenter in reply to George Turner says:

            “Anyone who can slide into a female soldier’s sleeping bag, itself laying on top of crinkly Mylar, while closely surrounded by other cadets on a quiet night, and not wake her or anyone else up, is a freakin’ super ninja who could slip into Tehran and take out their entire leadership with a #2 pencil.”

            But he did do that. His semen was left behind. His defense was consent, not that it didn’t happen so this makes no sense. And if you, or those judges, can’t think of reasons why a woman might not make a sound in that situation, you are all beyond help.Report

            • George Turner in reply to Em Carpenter says:

              Do you think it is reasonable that they might have been messing around and didn’t want to get caught?

              The question isn’t whether her story is plausible, it’s whether his story is also plausible. They found that it was, and said it was more plausible, and more supported by evidence, than hers.

              So they tossed out the sentence of 21 years in a military prison.Report

              • Em Carpenter in reply to George Turner says:

                They took the determination of the facts out of the province of the jury.Report

              • George Turner in reply to George Turner says:

                It’s not a jury like a civilian jury. It’s a jury of military personnel chosen by the officer bringing the charges, and it only needs a two-thirds majority to convict.

                It also might be subject to outside pressure, such as “It would be a lot better for the service, the academy, and your future if we look like we’re doing something on these assault cases, or the brass is going to throw a fit because they’ll get grilled in front of the Senate.”

                I don’t know if any of that happened, but the appellate judges are probably aware of the potential flaws in their system.Report

  3. Jaybird says:

    L5: Judge not.Report

  4. Aaron David says:

    L3 – I wouldn’t call that a punt. It was a clear statement that they (and by extension, all) judges have no business deciding what are political matters. That they are for the legislative branch. As it should be, due to the separation of powers. People seem to want clear cut answers that result in their opinions to be set in stone, but the system is designed to work against that. As it should be.Report

  5. Doctor Jay says:

    For what it’s worth, I have heard that while Weird Al insists he got permission to parody Coolio’s “Gansta Paradise” with “Amish Paradise”, Coolio says he didn’t give permission.Report

  6. JoeSal says:

    Good stuff Em.Report

  7. Is The Saga Begins fair use when anyone in his right mind would choose to listen to it rather than watch The Phantom Menace?Report

  8. L2: Last year Florida voters restored the right of felons to vote; this year, the GOP legislature took that right back from as many people as they could.


  9. L3: On the issue of partisan gerrymandering, SCOTUS awarded legislatures a license to do anything they like, including racially motivated districting so long as they can maintain any fig leaf that there’s a different motivation. This is a decision in the grand tradition of Shelby County. It is now unconditional surrender for any state not to gerrymander.Report

  10. L5: Harold and Kumar may seem easygoing, but do not push them too far.Report

  11. DensityDuck says:

    [L1] Don’t assume this means that you can just do whatever you want and call it Fair Use Parody, though. DeVore v Henley and many other cases have acted to limit the degree to which you can claim the right to republish protected material via transformative use; in particular, Souter’s reasoning about “direct criticism” is important.Report

    • Jaybird in reply to DensityDuck says:

      Souter’s reasoning about “direct criticism” is important.

      I understand that it might be, in theory, but if 2 Live Crew’s “Pretty Woman” constitutes “direct criticism”, I imagine that the term is used broadly enough to dilute its importance.Report

      • DensityDuck in reply to Jaybird says:

        Well, this was back when we were all stupid fools who thought that free speech was more important than people’s right to not feel threatened; you have to expect plenty of bullshit equivocal gaslighting pro-white-male-corporate reasoning from people back then.Report